IN THE HIGH COURT OF SOUTH AFRICA
NORTHWEST DIVISION, MAHIKENG
Case No.: 16/2018
Reportable: YES/ NO
Circulate to Judges: YES/NO
Circulate to Magistrates: YES/NO
Circulate to Regional Magistrates: YES/NO
In the matter between:
TSHEGOFATSO MOOKETSI Applicant/ Plaintiff
and
MEC FOR HEALTH FOR HEALTH
AND SOCIAL DEVELOPMENT Respondent/Defendant
This judgement was handed down electronically by circulation to the parties’
representatives via email. The date of hand-down is deemed to be 11 July 2023.
In the result, I make the following order:
1. The medical records contained in the core bundles
marked as exhibits “A”, “B” and “C”, as admitted by the
parties in the pretrial conference, are admitted into
evidence in terms of section 3(1) of the Law of Evidence
Amendment Act 45 of 1988, read with section 34(1)(ii) of
the Civil Proceedings Evidence Act 25 of 1965.
ORDER
2. The respondent shall pay the costs of the application.
Mfenyana J
Introduction
[1] In this application, the applicant seeks to introduce certain medical records
into evidence in terms of section 3(1) of the Law of Evidence Amendment Act, 45 of
1988 read with section 34 of the Civil Proceedings Evidence Act 25 of 1965.
These medical records form part of a bundle of documents which was discovered by
the respondent.
[2] During a pretrial conference held on 29 June 2020, the parties agreed
as follows:
“16 PROOF OF DOCUMENTS: RULE 37(6)(k)
…
16.1.1 all documents contained in
the core bundle are what
they purport to be and shall
be admissible in evidence
without formal proof or
production of the original;
JUDGEMENT
16.1.2 where a document in the core
bundle purports to have been
created by any person or sent
and received by that person
such document will be
regarded as having been so
created, sent or received
on/or about the date
appearing from the document
in question;
16.1.3 the documents contained in
the core bundle shall not be
regarded as constituting proof
of the correctness of their
content;
16.1.4 a document contained in the
core bundle shall not be
regarded as having been
adduced in evidence unless it
has been referred to during
the course of the hearing by a
witness called by either party;
16.1.5 any party may not later than
five (5) court days after
receipt of the core bundle,
give notice to the other party
to object to the application of
this agreement to any
document in the core bundle
whereupon the ordinary rules
of evidence relating to proof of
documents shall apply. Where
it is not reasonably possible to
comply with this provision,
notice within a reasonable
time may be given, subject to
such consequences which
may flow therefrom.”
[3] In a further pretrial conference held on 24 August 2021, the parties
confirmed this agreement, and agreed that the records reflect the contemporaneous
notes by the medical and nursing staff at the respondent’s medical facilities,
indicating their management and treatment of the plaintiff during March 2015 to July
2015.
[4] Despite the above agreement the respondent’s counsel during cross
examination sought to challenge reliance by the applicant’s expert witness on
statements contained in the bundle which formed part of the core bundle agreed to
by the parties.
[5] During his testimony, Dr Davis, an expert specialist gynecologist and
obstetrician, testifying in support of the applicant’s claim, referred to certain aspects
of the clinical notes, inscriptions, and hospital records contained in the core bundle.
These pertained to the treatment of the applicant at various medical facilities of the
respondent during the period March to July 2015.
[6] Dr Davis was cross- examined by counsel on behalf of the respondent for a
few days before an objection was raised to the effect that his reference and indeed,
his reliance on an inscription by Dr Ben Kahla, constitutes hearsay evidence. On the
next day of the trial the applicant brought the present application.
[7] The applicant’s contention is that there exists an agreement between the
parties pertaining to how the said evidence should be treated, which the respondent
could not resile from. Relying on a decision of the SCA in MEC for Economic
Affairs, Environment and Tourism, Eastern Cape v Kruizenga and Another
2010 (4) SA 122 (SCA), the applicant contends that, being an admission made at a
pre-trial conference, the respondent’s a dmissions at the pretrial conferences in 2020
and 2021 constitute sufficient proof of the facts contained in the documents in the
bundle. It was thus contended on behalf of the applicant that ‘it is difficult for a party
who refers to documents as if they are admissible, to later deny their admissibility’.
[8] The respondent’s contention on the other hand, is that as it is common
cause that Dr Kahla was not present at the first and second laparotomy procedures on
1 and 5 May 2015 , his inscriptions and clinical notes in this regard, absent his own
evidence, constitute hearsay. It is unclear how Dr Kahla obtained the information, or
what his inscription means, and any attempt to decipher it would be pure speculation,
contends the re spondent. The respondent thus places into question Dr Davis’s
reliance on these notes, to reach a conclusion as to when the bowel injury occurred,
stating that it is not based on facts.
[9] While the respondent initially took issue with the fact that the pretrial minute
attached to the founding affidavit is unsigned, the respondent appears not to take
issue with the fact that agreement was reached between the parties. A signed pretrial
minute was later provided. What the respon dent disputes, is the scope of the
agreement and avers that it only applies to the truthfulness of the documents and not
the accuracy of the content thereof. He does not say whether he holds himself bound
by the agreement reached at the pretrial conference.
[10] I do not understand Dr Davis’s testimony to be that the contents of the
inscription by Dr Kahla, nurses, and medical personnel featured on the medical
records, are true. That is not the point of his testimony. What he said is that these
notes support his finding that the injury occurred during the first laparotomy on 1 May
notes support his finding that the injury occurred during the first laparotomy on 1 May
2015. As an expert in his own right, he is at liberty to b ase his opinion on any
information available to him. This is what distinguishes him from a lay witness. I do
not agree with the respondent that his evidence must be based on facts. Quite to the
contrary, an expert witness need not base their opinion on personal observations. He
relies on information and data collected throughout his working life as a
professional, ‘which he must everyday treat as working thruths’. He is at liberty to
place reliance on the reported data of fellow scientists learned by perusing their
reports in books and journals. The law must and does accept this kind of knowledge
from scientific men.’ – S v Kimimbi 1963 (3) SA 250 (C).
[11] I associate myself with the above text. The import of it is that, in the facts of
the present case, Dr Davis, an expert in his own right, is permitted in law, to glean on
the evidence of other people in support of his opinion. He examined the patient, he
analysed the data available to him and based on all these factors, reached his findings.
As I understand his testimony, the clinical notes relied on, whether correct or not,
support his finding that the i njury to the patient occurred during the first laparotomy
procedure. Their truthfulness or otherwise is not a sine qua non for his findings. In any
event, it is not the respondent’ s case that the evidence relied upon by Dr Davis is
incorrect, but only that it is hearsay. As such, the respondent’s reliance on the
decision of Lord Justice Tomlinson in Mr Robert Synclair and East Lancashire
Hospitals NHS Trust Case No. B3/2014/1943 is not well grounded.
[12] In as much as the respondent relies on the decision in Dass v Masih, this
also does not assist the respondent. The following extract by Lord Denning from that
judgement, is instructive:
“P’s report giving his e xpert opinion that the
postscript was not written by the defendant and his
reasons for that conclusion, was admissible in
evidence at the trial by virtue of s.1(1) of the
Evidence Act, as a statement tending to establish
that fact.”
[13] In the same vein, the statement of Dr Kahla is admissible in evidence as a
statement tending to establish what is conveyed in the clinical notes he authored,
based on the information at his disposal.
[14] As was the case in Kimimbi, oftentimes experts refer to literature and
articles in print form, from authors all and sundry. It would be absurd to require that
every author on whose work an expert relies should be called to testify. Moreso, the
every author on whose work an expert relies should be called to testify. Moreso, the
evidence that the respondent seeks to challenge was agreed upon during the pretrial
conference, and relied upon by the respondent as admitted during that pretrial
conference.
[15] The respondent further avers that the application is too broad and would
prejudice the respondent, as the applicant seeks to have all the contents of Bundles
A, B and C, admitted into evidence. This cannot avail the respondent. For the simple
reason that the parties in the pretrial conference elected to include all medical
records in the core bundle. It follows then that all medical records fall within the scope
of the agreement, and were admitted into evidence by virtue of that agreement. What
is more is that these documents form part of the documents discovered by the
respondent and admitted during the pretrial conference. The respondent aligned
himself with them. Dr Davis was also cross - examined at length on these documents
without any inhibitions. The respondent can therefore not approbate and reprobate at
the same time.
[16] It is apposite to set out the full text in respect of hearsay evidence as set out
in Section 3 of the Law of Evidence Amendment Act 45 of 1988. It reads thus:
3. Hearsay evidence
“(1) Subject to the provisions of any other law, hearsay evidence shall
not be admitted as evidence at criminal or civil proceedings, unless─
(a) each party against whom the evidence is to
be adduced agrees to the admission thereof
as evidence at such proceedings;
(b) the person upon whose credibility the
probative value of such evidence depends,
himself testifies at such proceedings; or
(c) the court, having regard to─
(i) the nature of the proceedings;
(ii) the nature of the evidence;
(iii) the purpose for which the evidence is tendered;
(iv) the probative value of the evidence;
(v) the reason why the evidence is not
given by the person upon whose
credibility the probative value of
such evidence depends;
(vi) any prejudice to a party which the
admission of such evidence might
entail; and
(vii) any other factor which should in the
opinion of the court be taken into
account,
is of the opinion that such evidence should
be admitted in the interests of justice.
(2) The provisions of subsection (1) shall not render
admissible any evidence which is inadmissible on
any ground other than that such evidence is
hearsay evidence.
(3) Hearsay evidence may be provisionally admitted in
terms of subsection (1)(b) if the court is informed
that the person upon whose credibility the
probative value of such evidence depe nds, will
himself testify in such proceedings: Provided that
if such person does not later testify in such
proceedings, the hearsay evidence shall be left out
of the account unless the hearsay evidence is
admitted in terms of paragraph (a) of subsection
(1) or is admitted by the court in terms of
paragraph (c) of that subsection.
(4) For the purpose of this section─
‘hearsay evidence’ means evidence, whether oral
or in writing, the probative value of which depends
upon the credibility of any person other than the
person giving such evidence;
‘party’ means the accused or a party against
whom hearsay evidence is to be adduced,
including the prosecution.”
[17] Equally of relevance, are the provisions of the Civil Proceedings
Evidence Act 25 of 1965. Section 34 thereof provides:
34. Admissibility of documentary evidence as to facts in issue.
(1) In any civil proceedings where direct oral evidence
of a fact would be admissible, any statement made
by a person in a document and tending to establish
that fact shall on production of the original
document be admissible as evidence of that fact,
provided-
( a) the person who made the statement either-
(i) had personal knowledge of the
matters dealt with in the statement;
or
(ii) where the document in question is or
forms part of a record purporting to
be a continuous record, made the
statement (in so far as the matters
dealt with therein are not within his
personal knowledge) in the
performance of a duty to record
information supplied to him by a
person who had or might reasonably
have been supposed to have
personal knowledge of those
matters; and
(b) the person who made the statement is
called as a witness in the proceedings
unless he is dead or unfit by reason of his
bodily or mental condition to attend as a
witness or is outside the Republic, and it is
not reasonably practicable to secure his
attendance or all reasonable efforts to find
him have been made without success.
(2) The person presiding at the proceedings may, if
having regard to all the circumstances of the case
he is satisfied that undue delay or expense would
otherwise be caused, admit such a statement as is
referred to in sub -section (1) as evidence in those
proceedings-
(a) notwithstanding that the person who made
the statement is available but is not called
as a witness;
(b) notwithstanding that the original document
is not produced, if in lieu thereof there is
produced a copy of the original document
or of the material part thereof proved to be
a true copy.
(3) Nothing in this section shall render admissible as
evidence any statement made by a person
interested at a time when proceedings were
pending or anticipated involving a dispute as to any
fact which the statement might tend to establish.
(4) A statement in a document shall not for the
purposes of this section be deemed to have been
made by a person unless the document or the
material part thereof was written, mad e or
produced by him with his own hand, or was signed
or initialled by him or otherwise recognized by him
in writing as one for the accuracy of which he is
responsible.
(5) For the purpose of deciding whether or not a
statement is admissible as evidence by virtue of
the provisions of this section, any reasonable
inference may be drawn from the form or contents
of the document in which the statement is
contained or from any other circumstances, and a
certificate of a registered medical practitioner may
be acted upon in deciding whether or not a person
is fit to attend as a witness.
[18] The respondent contends that the provisional admission of the record is not
admission of hearsay evidence. He places reliance on the decision in AM obo KM v
MEC for Health, Eastern Cape (699/17) [2018] ZASCA 141 (1 October 2018). I do
not understand this decision to be of assistance to the respondent. For the simple
reason that no part of the record has been disputed by any of the parties. It could not
be. The documents originate from the respondent and were relied on by both
parties, at least for some time. As such, the respondent could not be heard to be
objecting to the same documents he has placed in evidence. It was common cause
in the AM matter that the documents were falsified. AM is distinguishable in these
respects, and in other respects I do not consider prudent to deal with at this stage.
[19] To the extent that the respondent avers that the statement of Dr Kahla is
hearsay, I consider it to be admissible hearsay within the contemplation of the Civil
Proceedings Evidence Act, in that the clinical notes of Dr Kahla “ form part of a
record purporti ng to be a continuous record,(and were) made (in so far as the
matters dealt with therein are not within his personal knowledge) in the performance
of a duty to record information supplied to him by a person who had or might
reasonably have been supposed t o have personal knowledge of those
matters.”
[20] In the circumstances, I hold that the provisions of section 3(1)(c) have been
satisfied. To the extent that I may be wrong in holding as I do, I am firmly of the view
that the interests of justice dictate that the records should be admitted.
Order
[21] In the result, I make the following order:
1. The medical records contained in the core bundles
marked as exhibits “A”, “B” and “C” , as admitted by
the parties in the pretrial conference, are admitted
into evidence in terms of section 3(1) of the Law of
Evidence Amendment Act 45 of 1988, read with
section 34(1)(ii) of the Civil Proceedings Evidence
Act 25 of 1965.
2. The respondent shall pay the costs of the application.
S MFENYANA
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
NORTHWEST DIVISION, MAHIKENG
APPEARANCES
DATE OF HEARING : 27 MARCH 2023
JUDGEMENT RESERVED : 27 MARCH 2023
DATE OF JUDGEMENT : 11 JULY 2023
For the Applicant : Adv. Gianni
Instructed by : Savage Jooste & Adams INC
c/o : Nienaber Attorneys
Email : charl-nienaber373@gmail.com
: charl@nwatt.co.za
For the Respondent : Adv Cassim
Instructed by : State Attorney
c/o : Mr P.P Nkonwana
Email : PNkonwana@justice.gov.za